**Exhibit 10.22(d)**

 

**MODIFICATION OFCREDIT AGREEMENT**

 

THIS MODIFICATION OF CREDIT AGREEMENT(“Modification”) is made as of the 29th day of June, 2004 (the “EffectiveDate”), by and between **SOUTHTRUST BANK**, an Alabama corporation,formerly known as SouthTrust Bank, National Association acting as a Lender andas Administrative Agent and Funding Agent (collectively “Agent”) pursuant tothe Credit Agreement (defined below), **WACHOVIA BANK, NATIONAL ASSOCIATION**, anational banking association, formerly known as First Union National Bank, anational banking association, acting as a lender, (together, the “Lenders”),and **TODHUNTERINTERNATIONAL, INC.**, a Delaware corporation (the “Borrower”)

 

**W I T N E S S E T H:**

 

WHEREAS, On October 19, 2001, Agent,Lenders and Borrower entered into an Amended and Restated Credit Agreement (assubsequently amended, “Credit Agreement”) in connection with Revolving Loans,Term Loans and Letters of Credit made available by Lenders, and other lenders,to Borrower in an aggregate commitment that is currently of $45,000,000.00; and

 

WHEREAS, Borrower has requested Agent andLenders to make certain modifications to the Credit Agreement includingmodifications of the financial covenants and extension of the RevolvingTermination Date; and

 

WHEREAS, Lenders and Agent are willing toamend the Credit Agreement on the terms and conditions set forth in thisModification.

 

NOW, THEREFORE, in consideration of mutualpromises and covenants of this Modification and for other good and valuableconsideration, the receipt and sufficiency of which is hereby acknowledged,Lenders, Agent and Borrower agree as follows:

 

1.             Recitals.  The foregoing recitals are true and correctand by this reference are made a material part of this Modification.  All capitalized terms used herein shall havethe meaning ascribed to them in the Credit Agreement unless the context shallrequire otherwise.

 

2.             Lenders.  SouthTrust Bank and Wachovia Bank, NationalAssociation are the sole Lenders, having received by assignment and mutualagreement the Loan interests of the other lenders heretofore a party to theCredit Agreement as Lenders.  As of theEffective Date hereof, the Credit Percentage of SouthTrust Bank is 55.5556% andthe Credit Percentage of Wachovia Bank, National Association is 44.4444%.

 

3.             Definitions.  The definitions of the following termsdefined in Article 1 are revised as follows:

 

----

 

**“EBITDA”**means, for any period, (i) net income (or loss) of the Borrower and itsSubsidiaries on a consolidated basis for such period, plus (ii) to theextent deducted in computing net income (or loss), (A) interest expense forsuch period, (B) charges against income for foreign, federal, state and localtaxes for such period, (C) depreciation and amortization of intangible assetsduring the period, (D) non-cash charges related specifically to FASB 133, FASB87 and FASB 123 and other non-recurring, non-cash charges during such period,(E) any extraordinary expense items and/or unusual, non-recurring cash chargesnot to exceed $500,000.00 realized during such period, less, (iii)non-cash credits related specifically to FASB 133, FASB 87 and FASB 123 and anyother non-recurring, non-cash credits for such period, and any gains or losseson the sale or disposition of assets outside the ordinary course of theBorrower’s business for such period. All of the foregoing shall be determined in accordance with GAAP.  EBITDA will be determined based on the mostrecent four (4) fiscal quarters of Borrower. 

 

“**Fixed Charge Coverage Ratio**” means the ratioof (i) EBITDA, less capital expenditures, to (ii) Fixed Charges.

 

“**Fixed Charges**” means cash interest, cashtaxes, scheduled principal payments on Funded Debt and cash dividends paid inthe period in question, but not including any additional principal paymentsmade by Borrower pursuant to Section 2.09.

 

“**Funded Debt**” means without duplication, theprincipal balance of all indebtedness, for money borrowed, purchase moneymortgages, capitalized leases, conditional sales contracts and similar titleretention debt instruments under which Borrower or any of its Subsidiaries isan obligor, including any current maturities of such indebtedness, plus alldebt of other entities or Persons, other than Subsidiaries, which has beenguaranteed by the Borrower or any Subsidiary (other than the current balance ofthe indebtedness of Premier Wines & Spirits, Ltd. as of October 19,2001 guaranteed by Borrower), or which is supported by a letter of creditissued for the account of the Borrower or any Subsidiary which by its termsmatures more than one year from the date of any calculation thereof and/orwhich is renewable or extendible at the option of the obligor to a date beyondone year from such date; *provided that*,for the purposes of this Agreement, the calculation of “Funded Debt” as of theend of Borrower’s first three (3) fiscal quarters shall exclude the bi-weeklyexcise tax payments made by Borrower (to the extent such payments are fundedfrom the Revolving Credit Facility) up to $2,500,000.00 and the calculation of“Funded Debt” as of the end of Borrower’s fiscal year shall exclude thebi-weekly excise tax payments made by Borrower (to the extent such payments arefunded from the Revolving Credit Facility) up to $5,000,000.00.  “Funded Debt” shall also exclude the TankLoan.

 

**“RevolvingTermination Date”** shall mean September 29, 2006.

 

2

----

 

4.             FixedCharge Coverage.  Section 11.03of the Credit Agreement is hereby replaced in its entirety with the following:

 

***SECTION 11.03.  Fixed Charge Coverage***.    Maintain at all times a Fixed ChargeCoverage Ratio of not less than 1.00 to 1.00, which shall be tested at eachfiscal quarter end of Borrower for the four consecutive quarters then ended.

 

5.             Liquidity.  Section 11.06 is hereby deleted in itsentirety as of March 30, 2004.

 

6.             Amendment.  Notwithstanding anything in Section 14.07 tothe contrary, amendments to financial covenants will be subject to approval ofRequired Lenders unless there are fewer than three (3) Lenders, in which caseall amendments shall be subject to approval of all of the Lenders.

 

7.             FurtherAgreement.  Lenders and Borrowerfurther agree as follows:

 

a.                                       Notwithstandinganything to the contrary in Sections 10.05 or 10.16 of the CreditAgreement, Borrower may pay cash dividends in an amount not to exceed 33.33% ofnet earnings as long as no event of Default has occurred.

 

b.                                      Borrower’sForeign Subsidiaries may increase their investments in Todhunter FinanceCompany and Todhunter Barbados (SRL) provided such investments will be used toincrease loans extended by Todhunter Finance Company to Borrower.  All such loans shall be subordinate to theLoans.

 

c.                                       Borrowermay transfer the Cruzan trademark to a foreign entity of which Borrower or anyof its Subsidiaries owns at least fifty percent.

 

8.             Pricing.  The pricing grid incorporated into thedefinition of Applicable Margin in Section 1.01 of the Credit Agreement ishereby replaced in its entirety with the following:

 
|      |   |                         |   | **Applicable  Margin  Revolving Loans** |   | **Applicable  Margin  Term Loans** |   |
|-----------|--------|------------------------------|--------|-----------------------------------------|--------|------------------------------------|--------|
| **Level** |   | **Funded  Debt/EBITDA**      |   | **Eurodollar  Rate**                    |   | **Base Rate**                      |   | **Unused  Fee** |   | **Eurodollar  Rate** |   | **Base Rate** |   |
| I         |   | ≤ 3.25 and › 2.50 |   | 2.50                                    | %      | .50                                | %      | 0.25 | % | 3.00 | % | 0.75 | % |
| II        |   | ≤2.50 and › 2.00  |   | 2.25                                    | %      | 0.50                               | %      | 0..25 | % | 2.75 | % | 0.75 | % |
| III       |   | ≤ 2.00 and › 1.50 |   | 2.00                                    | %      | 0.25                               | %      | 0.25 | % | 2.50 | % | 00.50 | % |
| IV        |   | ≤ 1.50                 |   | 1.75                                    | %      | 0.25                               | %      | 0.25 | % | 2.25 |   | 0.50 | % |

 

3

----

 

9.             Warranty.  Borrower hereby warrants and represents toLenders that, since May 14, 2003, Borrower has been and is in compliancewith all provisions of the Credit Agreement and all other Loan Documents andthat no default or Event of Default has occurred thereunder nor has any eventoccurred or failed to occur which with the passage of time or the giving ofnotice or both would comprise such a Default or Event of Default.

 

10.           Ratifications.  Borrower hereby ratifies and confirms eachof its obligations and indebtedness under the Credit Agreement and each of theother Loan Documents, as amended hereby, and hereby represents and warrants toLenders and Agent that Borrower neither has nor claims any defenses,counterclaims or offsets to any such obligations or indebtedness.

 

11.           Fees.  The effectiveness of this Modification andthe amendments contemplated herein are expressly conditioned upon the paymentby Borrower to Agent for the prorata benefit of Lenders an amendment fee of$45,000.00 (based on ten (10) basis points of the current committed amount($45,000,000)), $13,333.33 of which shall be payable by Agent to LenderWachovia Bank, and reimbursement by Borrower of Agent for all reasonableattorneys’ fees and expenses incurred in connection with this Modification.

 

12.           Miscellaneous.

 

(a) This agreement shall be governed by and construed in accordance with thelaws of the State of Florida.  Paragraphheadings used herein are for convenience only and shall not be used tointerpret any term hereof.  The CreditAgreement shall continue in full force and effect as modified by thisModification.  In the event the terms ofthis Modification conflict with the terms of the Credit Agreement, the terms ofthis Modification shall control.

 

(b) This Modification constitutes the entire agreement among the partieshereto and supersedes all prior agreements, understandings, negotiations anddiscussions, both written and oral among the parties hereto with respect to thesubject matter hereof, all of which prior agreements, understanding,negotiations and discussions, both written and oral, are merged into thisModification.  All provisions of theCredit Agreement and each of the other Loan Documents shall remain in fullforce and effect as modified by this Modification.  Without limiting the generality of any of the provisions of thisModification, nothing herein or in any instrument or agreement shall be deemedor construed to constitute a novation, satisfaction or refinancing of all orany portion of the Loan or in any manner affect or impair the lien or priorityof the Credit Agreement or any of the Loan Documents as amended hereby.

 

(c) This Modification may be executed in any number of counterparts witheach executed counterpart constituting an original, but altogether constitutingbut one and the same instrument.

 

(d) This Modification shall be binding upon and inure to the benefit ofBorrower, Agent and Lenders and their respective heirs, legal representatives,executors, successors and assigns.

 

13.           RELEASE.  IN CONSIDERATION OF THE ACCOMMODATIONSPROVIDED HEREIN, BORROWER HEREBY UNCONDITIONALLY IRREVOCABLY AND FOREVERRELEASES, ACQUITS AND DISCHARGES LENDERS AND EACH OF

 

4

----

 

LENDERS’ RESPECTIVE OFFICERS, DIRECTORS,EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL CLAIMS, DEMANDS AND CAUSES OFACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE FUTURE HAVE AGAINST ANY ONEOR MORE OF THE LENDERS OR ANY ONE OR MORE OF LENDERS’ OFFICERS, DIRECTORS,EMPLOYEES, AGENTS OR COUNSEL FOR THE ACTS OR OMISSIONS OF ANY OF THE FOREGOINGPARTIES FROM THE BEGINNING OF TIME THROUGH, TO AND INCLUDING THE DATE OF THEEFFECTIVENESS OF THIS MODIFICATION, WHICH RELATED TO ANY CLAIMS ARISING OUT OFOR CONNECTED IN ANY MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THECREDIT AGREEMENT AS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS AS THE SAME MAYBE AMENDED HEREBY, AS THE CASE MAY BE.

 

14.           WAIVEROF JURY TRIAL.  BORROWER, AGENT ANDLENDERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OFTHEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ORARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MODIFICATION OR ANY AGREEMENTEXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,STATEMENTS, (WHETHER VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY.  THIS PROVISION IS A MATERIAL INDUCEMENT TOLENDERS’ ENTERING INTO THIS MODIFICATION AND MAKING ANY LOAN, ADVANCE OR OTHEREXTENSION OF CREDIT TO BORROWER. FURTHER, BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OFLENDERS, NOR THE AGENT OR ANY OF AGENT’S COUNSEL OR LENDERS’ COUNSEL, HASREPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY OF AGENT’S COUNSEL ORLENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVEROF RIGHT TO JURY TRIAL PROVISION.  NOREPRESENTATIVE OR AGENT OF LENDERS, NOR AGENT OR ANY OF AGENT’S COUNSEL ORLENDERS’ COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THISPROVISION.

 

IN WITNESS WHEREOF, Borrower, Agent andLenders have caused this agreement to be effective as of the day and year setforth above.

 
| WITNESSES:                     | BORROWER:                                             |
|--------------------------------|-------------------------------------------------------|
|                           |                                                  |
|                           | TODHUNTER INTERNATIONAL, INC., a Delaware corporation |
|                           |                                                  |
|                           |                                                  |
| /s/:  Michael V. Mitrione |                                                  | /s/: Ezra Shashoua, Executive Vice President |   |
| /s/:  Thomas E. Streit    |                                                  |   |
|                                |                                                       |  |  |  |

 

5

----

 
| STATE OF FLORIDA     | ) |
|----------------------|---|
|                 | ) |
| COUNTY OF PALM BEACH | ) |

 

The foregoing instrument was acknowledgedbefore me this 29th day of June, 2004 by Ezra Shashoua as ExecutiveVice President of Todhunter International, Inc., on behalf of thecorporation.  He is **personally known** to meor has produced                                       (type of identification) as identification.

 

 
|                           | /s/:  Thomas E. Streit                               |                                       |
|--------------------------------|-----------------------------------------------------------|--------------------------------------------|
|                           | Notary Public                                             |
|                           | State of Florida                                          |
|                           |                                                      |
|                           | /s/:  Thomas E. Streit                               |                                       |
|                           | Commission No.  CC982756                             |
|                           | My Commission Expires:  Nov.  19, 20o04              |
|                           | (Print,Type  or Stamp Commissioned Name of Notary Public) |
|                           |                                                      |
|                           |                                                      |
| WITNESSES:                     | AGENT:                                                    |
|                           |                                                      |
|                           | SOUTHTRUST BANK, an Alabama banking corporation           |
|                           |                                                      |
|                           |                                                      |
| /s/:  Michael V. Mitrione |                                                      | /s/:  Tom Turnberger, Vice  President |   |
| /s/:  Thomas E. Streit    |                                                      |                                       |
|                           |                                                      |
| STATE OF FLORIDA               | )                                                         |
|                           | )                                                         |
| COUNTY OF PALM BEACH           | )                                                         |
|                                |                                                           |                                            |  |  |  |  |

 

The foregoing instrument was acknowledgedbefore me this 29th day of June, 2004 by Tom Turnberger as VicePresident of SouthTrust Bank, on behalf of the bank.  He is **personally known to me** or has produced_____________________ (type of identification) as identification.

 
|   | /s/:  Thomas E. Streit                                |   |
|--------|------------------------------------------------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |
|   | My Commission Expires:  Nov.  19, 2004                |
|   | Commission No.  CC 982756                             |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |

 

6

----

 
| WITNESSES:                           | LENDERS:                                        |
|--------------------------------------|-------------------------------------------------|
|                                 |                                            |
|                                 | SOUTHTRUST BANK, an Alabama banking corporation |
|                                 |                                            |
|  /s/:  Michael V. Mitrione |                                            | /s/:  Tom Turnberger, Vice  President |   |
|  /s/:  Thomas E. Streit    |                                            |   |
|                                 |                                            |
|                                 |                                            |
| STATE OF FLORIDA                     | )                                               |
|                                 | )                                               |
| COUNTY OF PALM BEACH                 | )                                               |
|                                      |                                                 |  |  |  |  |

 

The foregoing instrument was acknowledgedbefore me this 29th day of June, 2004 by Tom Turnberger as VicePresident of SouthTrust Bank, on behalf of the bank.  He is **personally known to me** or has produced                                         (type of identification) as identification.

 

 
|   | /s/:  Thomas E. Streit                                |   |
|--------|------------------------------------------------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |
|   | My Commission Expires:  Nov.  19, 2004                |
|   | Commission No.  CC982756                              |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |
|   | WITNESSES:                                                 |

 

7

----

 
|  WITNESSES:               | WACHOVIA BANK, NATIONAL ASSOCIATION |
|--------------------------------|-------------------------------------|
|                           |                                |
| /s/:  Michael V. Mitrione |                                | /s/:  Britton S. Core, Vice  President |   |
| /s/:  Thomas E. Streit    |                                |   |
|                           |                                |
|                           |                                |
| STATE OF FLORIDA               | )                                   |
|                           | )                                   |
| COUNTY OF PALM BEACH           | )                                   |
|                                |                                     |  |  |  |  |

 

The foregoing instrument was acknowledgedbefore me this 29th day of June, 2004 by Britton S.Core as VicePresident of Wachovia Bank, National Association, on behalf of thebank.  He/She is **personally known to me**or has produced                                          (type of identification) as identification.

 

 
|   | /s/:  Thomas E. Streit                                |   |
|--------|------------------------------------------------------------|--------|
|   | Notary Public                                              |
|   | State of Florida                                           |
|   |                                                       |
|   | My Commission Expires:  Nov.  19, 2004                |
|   | Commission No. CC 982756                                   |
|   | (Print,  Type or Stamp Commissioned Name of Notary Public) |

 

8

----